698,893 cases and 8,540 casualties later, Haiti is still embroiled in a difficult battle against cholera, which hit the small Caribbean island nation in late 2010. Although optimism remains high, several factors have lead to a standstill in the complete eradication efforts, thus questioning the capability and integrity of MINUSTAH (United Nations Stabilization Mission in Haiti).
MINUSTAH has been subjected to a substantial amount of criticism for having failed in its legal and moral obligations to the people of Haiti. Going by the assumption that the Nepali peacekeepers are indeed to blame for introducing a cholerae strain to Haitians, the remedy is quite straightforward: apologize and compensate Haitians.
Lets scrutinize this part of the remedy. Compensation here widely encompasses two main objectives, namely, paying reparations to all the affected parties and solving the problem by providing for a total eradication programme. When the victims initially petitioned the UN for compensation, they demanded $50,000 for each injured, and $100,000 for each deceased. This comes out to approximately $36 billion. Add to this the failure of the UN to raise $2.2 billion to facilitate the total eradication of cholera in Haiti, a mere $52.2 million (2% of the promised fund) of which has been raised so far. So, the UN requires approximately $38 billion to take care of the financial problem arising out of this fiasco.
Another point that should be made is the fact that the actors directly responsible for the outbreak - the Nepali contingent, and the UN to some extent for gross negligence - would not even pay the bulk of the burden of compensation, as the cost would move on to all the UN member states via the budgeting process.
The money is, however, the least of the UN’s problems in Haiti. Morally, the UN owes Haitians an apology. Apologizing to the people of Haiti will mean that the MINUSTAH is accepting culpability for the cholera outbreak. The reason Ban-Ki moon invoked the legal immunity for the UN when claimants came forward was to ensure that a precedent was not established. The UN is presently involved in over 15 peacekeeping operations around the world. Acceding to this petition will allow claimants in virtually every part of the world to drag the UN to court, for the smallest of matters. Member states will become apprehensive of contributing finance, troops, or logistics for future UN operations for fear of being dragged into a political drama, which may or may not be of their doing.
Legally, the UN should have established a claims commission to hear the pleas of affected Haitians. This is explicitly mentioned in the SOFA (Status of Forces Agreement) signed between the MINUSTAH and the Haitian government, and it is this provision which gives the UN the right to invoke legal immunity in the first place. Unfortunately, the UN has not established a standing claims commission. Even more unfortunate, the legal immunity granted to the UN cannot be revoked, as the only party capable of doing so is the Haitian government. Governments of member states that have active UN peacekeeping missions on their soil, tend to become subservient to the UN, in the hope of expediting the rehabilitation process.
A standing claims commission would have helped the UN to address the cholera victim’s claims in a timely and meaningful manner. Rather than the actual outbreak, having ignored the problem for so long is a more damaging factor for Haiti.
Quite often, the UN does make ex gratia payment for damages caused by its operations, without establishing a standing claims commission. The constitution of these ‘ad-hoc’ commissions proves that the UN is not adverse to compensating the injured party when a claim arises. In fact, it can be argued that the UN’s failure to establish standing claims commissions at its peacekeeping operations is more to do with maintaining its archaic image of being an overseer with no accountability. Alas, quite often this mechanism allows the UN to have a blanket denial for its legal obligations. But what needs to be understood is that this offers the UN the operational capacity it requires to remedy a situation, which might not be possible otherwise, due to political, social or ethical factors. The blanket immunity mechanism cannot be a mid-point, to be taken away when deemed morally wrong. It is either full immunity, or nothing at all. And for better or worse, the UN has collectively decided to keep the blanket immunity mechanism, international law not withstanding.
Thus, the UN’s legal obligation in this case does not offer the provision for its moral responsibility to be carried out.
Morally, the UN owes the people of Haiti an apology. Rhetorically, the UN must make itself accountable, to give credence to its caveat of moral responsibility, as the UN Charter embodies. Unfortunately, this will have a legal ramification which the UN cannot follow through with, and will set a dangerous precedent, which may very well sabotage all present and future peacekeeping operations. Therefore, the UN finds itself at a crossroads of its moral responsibility and legal culpability which prevents it from accepting either of the two, thus hindering its capacity to function as an effective reconstruction unit in Haiti. Ironically, the UN is also Haiti’s best and only bet to restore a self-sustaining and healthy state.